Gutierrez v Nguyen

[2020] FCCA 2355

FEDERAL CIRCUIT COURT OF AUSTRALIA

GUTIERREZ v NGUYEN [2020] FCCA 2355

Catchwords:
INDUSTRIAL LAW – Under payment of wages – sham contracting arrangements. 

Legislation:

Fair Work Act 2009 (Cth), ss.357, 545

Cleaning Services Award 2010.

Applicant: ANDRES GUTIERREZ

Respondent: TRUNG NGUYEN

File Number: MLG 3552 of 2019

Judgment of: Judge McNab

Hearing date: 19 August 2020

Date of Last Submission: 19 August 2020

Delivered at: Melbourne

Delivered on: 19 August 2020

REPRESENTATION

Counsel for the Applicant: Ms G Marchetti

Solicitors for the Applicant: JobWatch

The Respondent: No appearance

ORDERS

1. The Respondent pay the Applicant the sum of $7,480.70 being unpaid wages in the sum of $4,109.59 and superannuation in the sum of $3,371.11.

2. The Respondent pay the Applicant interest accrued in the sum of $1,484.62.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3552 of 2019

ANDRES GUTIERREZ

Applicant

And

TRUNG NGUYEN

Respondent

REASONS FOR JUDGMENT

Delivered Extempore (Revised From Transcript)

1. I am satisfied that the Applicant is entitled to the sums claimed in the application in respect of unpaid wages and unpaid superannuation entitlements. 

2. By way of background, the Applicant, Mr Gutierrez, is from Columbia and was working here on a visa.  He was introduced to the Respondent, Mr Nguyen, by a mutual friend who was also from Columbia who knew of the respondent.  The Applicant approached the Respondent for work and was given a business card, which has the name of the Respondent on it and describes the respondent as director. However the business card does not make any reference to any company. 

3. The Applicant was engaged as a brick cleaner. At the point of his engagement in July 2015, he was told that he needed to have an ABN number and that he needed to render invoices in order to get paid. I agree with the submission that objectively, in this case, the Applicant was not conducting a business, and that the arrangements whereby the Applicant rendered invoices as if he was conducting a business, was, in fact, a sham arrangement (see section 357 of the Fair Work Act 2009 (Cth). The equipment which he used was owned by the Respondent. He had no prior skills or experience in this area of employment, and he was paid $16 an hour.

4. I find that he was entitled to be paid pursuant to the provisions of the Cleaning Services Award 2010 [MA000022] (“the Cleaning Services Award”) during the period of employment. I accept that that, whilst there might be some question as to whether there might be some other award that applies, at no point has the respondent made submissions in relation to that point, and it appears that – given the nature of the Applicant’s work as a brick cleaner – the Cleaning Services Award is an Award that applies.

5. The Applicant has given evidence that, in or around July 2016, he was told by the Respondent that he had to add GST to the invoices that he rendered.  The evidence that was given at hearing was that the amounts that were rendered did not increase by reason of the referenced GST; all that happened was that the primary amount per hour was reduced by

   
   

   10 per cent and GST was then added on the reduced amount, so that the total cost to the respondent was no greater than prior to GST being applied.  The Applicant has given evidence that from about 7 November 2016 until 30 November 2016, he was not paid at all for the work that he was performing, notwithstanding the fact that he continued to work full time. 

6. I am satisfied that the Respondent has been served with an application, and the Applicant  refers to the affidavit of service filed by the Applicant, which was sworn by him to be true and correct on this day during the hearing of this matter. The Respondent had notice of the application as a result of communications with him by Ms Marchetti from JobWatch, who is representing the Applicant. 

7. I am satisfied that the Applicant was an employee, not conducting his own business, was entitled to the benefits of the Cleaning Services Award and, pursuant to the terms of that Award, was underpaid the amount of $4,109.59 in respect of wages and $3,371.11 in respect of unpaid superannuation. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:

Date: 26 August 2020